The Supreme Court judges led by Chief Justice Martha Koome heaved a sigh of relief after the Judicial Service Commission halted the process of removing them from office as proposed by three Kenyans who complained over the judges' alleged misconduct, incompetence, and misbehaviour.
After a day-long meeting on Tuesday, February 25, the Commission chaired by Vice-chairperson Isaac Rutto resolved to defend its Constitutional mandate and power to discipline judicial officers in court following multiple suits filed by six judges and a civilian challenging the proceedings.
The decision sets the stage for a precedent-setting legal fight between the CJ Koome-led seven-judge bench and the Commission led by Mr Rutto.
At the centre of the legal dispute is the question raised by the Supreme Judges on whether JSC has an oversight role over the Supreme Court and whether JSC can entertain an omnibus complaint against the entire seven-judge bench.
Another preliminary question that the High Court will determine is whether the removal of a judge from office is a Constitutional process that cannot be stopped or interfered with.
The complaints at JSC were filed by former Cabinet Minister Raphael Tuju's Dari Limited and lawyers Nelson Havi and Christopher Rosana.
The judges have blamed a negative social media campaign by two lawyers, Mr Havi, and Mr Ahmednasir Abdullahi, alleging corruption and bribery at the Apex Court.
They have attached copies of the social posts by the two lawyers "disparaging the Supreme Court and the judges".
Even as the JSC prepares to file its responses in court in the multiple suits lodged by the judges and a Citizen named Pariken Ole Esho, the Commission is enjoying the backing of the complainants who are arguing that the process of removing a judge from office cannot be stopped and that the aggrieved judicial officer should challenge the outcome of the process.
One of the complainants, lawyer Nelson Havi, has filed papers in court stating that the JSC cannot be blocked from performing its functions outlined in Article 168 of the Constitution.
He has borrowed his argument from last year's impeachment case of former Deputy President Rigathi Gachagua against the National Assembly, where the High Court ruled that an ongoing Constitutional process cannot be stopped or interfered with.
In that case, the three-judge bench comprising Erick Ogolla, Fredah Mugambi, and Anthony Mrima held that “issuing an order that suspends a Constitutional provision would directly contravene this principle, effectively placing judicial discretion above the supreme laws of the land. This would be inconsistent with the spirit of judicial restraint and the Court's role as a protector not modifier of the Constitution”.
According to Mr Havi, “If the High Court did not have the power to stop Parliament from considering a petition for the removal of the Deputy President of the Republic of Kenya, it definitely cannot have the power to stop the JSC from considering the petition for the removal of the seven Judges of the Supreme Court."
He wants the High Court to set aside the temporary orders that blocked the JSC from processing the complaints and allow the process to continue.
For CJ Koome, her deputy Philomena Mwilu together with Justices Mohammed Ibrahim, Isaac Lenaola, Njoki Ndung'u, and William Ouko, have faulted the Commission for entertaining and admitting the petitions, which have listed all the seven judges together as defendants.
Justice Smokin Wanjala moved to court on Wednesday, joining CJ Koome and the other Supreme judges in challenging the decision of the JSC to entertain the complaints.
Additionally, she said the Constitution says the power of JSC is on the removal of a 'judge' from office not 'judges', hence the decision of JSC to admit an omnibus complaint was fatal.
"JSC has no jurisdiction whatsoever to entertain any petition about a court, whether disguised as a petition initiated against all the members constituting the said court individually or against the court itself. Indeed it is the Supreme Court which has ultimate authority over JSC on matters of removal of judges of superior courts," said Ms Koome in the court papers.
"The Constitution does not conceive any circumstances under which the Supreme Court can be subordinated to the JSC".
By admitting the ouster petitions against the entire seven-judge bench, she said the JSC denied the individual judges' right of appeal and clogged their right to a fair hearing and right to access to justice as well as equal protection and equal benefit of the law.
She also told the court that the intended removal of the entire bench will create a Constitutional crisis in the country since the "Constitution does not anticipate a circumstance the Constitution can operate without the Supreme Court" and that the petitions at JSC intend to create a Constitutional vacuum and crisis in the country.
She was backed by the other six judges, who argued that the Commission lacks the requisite jurisdiction to hear and determine the Complaints as drawn and filed on account of the express provisions of Article 168 of the Constitution.
They said the Constitution provision mandates the Commission to initiate the removal of a judge from office on account of individual and personal culpability and not based on collegial decisions.
Ms Mwilu explained that the Constitution does not entertain the removal of a judge based on collegial decisions of the entire Supreme Court.
"The architecture of article 168 of the Constitution only gives the JSC the mandate to initiate the removal of a judge from office on account of individual and personal culpability," she said.
While Mr Tuju's complaint involves handling a commercial dispute pitting Dari Limited and East African Development Bank, lawyers Havi and Rosana's complaints concern a unanimous decision of the judges to ban lawyer Ahmednasir Abdullahi over his social media posts regarding the court.
The judges have attributed their troubles to a negative social media campaign by two lawyers, Mr Havi and Mr Abdullahi alleging corruption, incompetence, and bribery.
"I have personal knowledge that Mr Havi and Mr Abdullahi have also over the years and even recently made clear their contempt for me and the other Supreme Court judges through their numerous social media posts mostly on the X platform," she said.
The court cases will be mentioned on March 5 and 12, 2025.
